Once a contract of sale is complete, the seller cannot take back the sold property without consent, as it would amount to theft under Section 378 RPC.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioner has challenged the complaint filed by the respondent against him alleging commission of offence under Section 379 RPC, which is pending before the Court of Special Mobile Magistrate (Sub-Judge), Anantnag (hereinafter referred to as the trial Magistrate). Challenge has also been thrown to order dated 09.02.2017 passed by the learned trial Magistrate whereby process has been issued against the petitioner on the basis of the aforesaid complaint. The petitioner has also challenged order dated 26.02.2018 passed by Additional Sessions Judge, Anantnag, whereby revision petition filed against the aforesaid order of the learned trial Magistrate has been dismissed.

2. It appears that respondent/complainant had filed a complaint before the learned trial Magistrate alleging therein that he is the attorney holder of the vehicle bearing Registration No. JK01Q-7383 and that the Power of Attorney in his favour has been executed by the petitioner/accused on 12.05.2015. It was averred in the complaint that due to turmoil in Kashmir Valley in July-August, 2016, the complainant could not deposit the loan amount with the bank and in the month of October, 2016, when he had parked his vehicle at Wazir Bagh Anantnag, the petitioner/accused took away the said vehicle, thereby committing the offence of theft. It was further averred that when the respondent/complainant asked the petitioner to deliver back the vehicle, he refused to do so and instead used abusive language against him.

3. After recording the preliminary evidence, the learned trial Magistrate referred the complaint to SHO, P/S Saddar Anantnag, for conducting enquiry in terms of Section 202 of the Cr.P.C. Upon receipt of the report of the enquiry, learned trial Magistrate passed a detailed order dated 09.02.2017, wherein he recorded his satisfaction that, prima facie, offence punishable under Section 379 RPC is disclosed against the petitioner/accused and, accordingly, process was issued against him.

4. It seems that the aforesaid order of the learned trial Magistrate was challenged by the petitioner by way of a revision petition before Additional Sessions Judge, Anantnag (hereinafter referred to as the Revisional Court). The Revisional Court vide its order dated 26.02.2018 upheld the legality and validity of the order passed by the learned trial Magistrate and the revision petition was dismissed.

5. Both the aforesaid orders have been challenged by the petitioner in these proceedings.

6. It has been contended by the petitioner that the vehicle in question was purchased by him after availing loan from the J&K Bank Ltd. Branch Residency Road, Srinagar. It is averred that on 12.05.2015, a Power of Attorney was executed by the petitioner in respect of the vehicle in question in favour of the respondent with a specific condition that he will be responsible to deposit the installments on regular basis in accordance with the terms of loan agreement and if he fails to do so, he will hand over the car back to the petitioner. It is further averred that in addition to this, another agreement came to be executed between the parties on 14.05.2015, wherein it was clearly stipulated that the respondent would not commit any default in payment of installments and if he does so, he will have to pay penalty of Rs. 50,000/- for each default. It is averred that the respondent failed to deposit the loan installments with the bank, as a result of which the bank continued to deduct the monthly installments from the petitioner’s salary right from 11.01.2016.

7. It is contended that the order of taking cognizance passed by the learned trial Magistrate is mechanical in nature and it lacks application of mind. It is further contended that the petitioner being owner of the vehicle in question has a right to preserve and protect the same and that his activity does not amount to any offence. It is also contended that on the basis of the report of the enquiry, no offence was disclosed